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Shivappa Mallappa Hosmani Vs. Avali Lumanna Ghadi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberFirst Appeal No. 175 of 1922
Judge
Reported inAIR1924Bom521; (1924)26BOMLR814; 83Ind.Cas.145
AppellantShivappa Mallappa Hosmani
RespondentAvali Lumanna Ghadi
DispositionAppeal dismissed
Excerpt:
.....1874), section 5--ghadi vatan--mortgage by vatandar--mortgagee acquires no right as mortgagee by adverse possession during mortgagors' life-time.;certain lands, granted by government as service emoluments appertaining to the office of ghadi, were mortgaged by the last holder in 1900. he died in 1912. in 1920, his widow sued to redeem the mortgage, alleging that the mortgage came to an end on the death of the last holder, under the vatan act the mortgagee contended that the mortgage having enured for twelve years prior to the date of the suit, he was entitled to the mortgage right by adverse possession:--;that the mortgagee's possession of the lands during the life time of the last holder was not adverse to him; and that the suit brought by his widow within eight years of his death was..........way of mortgage more than twelve years prior to the date of the suit, they had become entitled by adverse possession to the mortgage right. the learned judge came to the conclusion that the lands were vatan lands, and that the mortgage by lumanna became inoperative on his death. accordingly the learned judge passed a decree in favour of the plaintiff, except as to one land, about which there is no dispute now.defendants have appealed to this court, and it is urged on behalf of the appellants that the view of the trial court is not right, and this cannot be treated as vatan land because the office to which the grant relates is not an hereditary office within the meaning of that expression as defined in the hereditary offices act iii of 1874. it is contended that this is not an office.....
Judgment:

Lallubhai Shah Ag, C.J.

1. A few facts connected with this appeal are these. One Lumanna mortgaged the lands in suit to one Balappa in 1900. Lumanna died on February 22, 1912, leaving a widow. The present suit was filed in October 1920 by the widow to recover possession of the mortgaged lands on the footing that the mortgage had come to an end on the death of Lumanna, as he had no power to alienate the lands under the terms of the Sanad. The lands in question were granted under a Sanad in respect of Ghadi services to be rendered by the alienee. These services were supposed to be useful to the village community. The terms of the Sanad were these:--

It is hereby declared that the said land shall be continued, so long as the village communities may require the services, as the service emoluments apper, tuning to the office of Ghadi on the following conditions:--that is to say, that the holders thereof shall perform the usual service to the community, and shall continue faithful subjects of the British Government.

2. It was urged by way of defence, that the Vatan Act did not apply to this office, and that the lands having been transferred by way of mortgage more than twelve years prior to the date of the suit, they had become entitled by adverse possession to the mortgage right. The learned Judge came to the conclusion that the lands were Vatan lands, and that the mortgage by Lumanna became inoperative on his death. Accordingly the learned Judge passed a decree in favour of the plaintiff, except as to one land, about which there is no dispute now.

Defendants have appealed to this Court, and it is urged on behalf of the appellants that the view of the trial Court is not right, and this cannot be treated as Vatan land because the office to which the grant relates is not an hereditary office within the meaning of that expression as defined in the Hereditary Offices Act III of 1874. It is contended that this is not an office held hereditarily for the performance of duties connected with the administration or collection of the public revenue, of with the village police or with the settlement of boundaries, or other matters of civil administration. Further it is urged that if that is so, the provisions of Section 5 or the Vatan Act would not apply to this particular alienation, and that the mortgagee having been in enjoyment of his rights under the mortgage bond since the date of the transfer, the defendants became entitled to the right under the mortgage bond in virtue of their having enjoyed that limited interest in the property for over twelve years.

3. On behalf of the respondent it is not disputed that this would not be an hereditary office within the meaning of the Hereditary Offices Act. But it is urged that the possession of the mortgagee would not be adverse to the plaintiff prior to the death of Lumanna. It is also urged on behalf of the respondent that in the litigation of 1914, to which reference has been made by the lower Court, the present defendants sought to recover part of the mortgaged property from the widow, the present plaintiff, who had taken possession of that particular land some time after her husband's death, and they failed on the ground that the mortgage had ceased to be operative after the death of Lumanna. It seems to me that the decision in Jamal Saheb v. Murgaya Swami I.L.R. (1885) 10 Bom. 34 to which our attention was fairly and properly drawn by Mr. Coyajee, is applicable and the appellants' contention that they acquired the mortgage right by adverse possession for over twelve years cannot be allowed. In that case the Sanad was for all essential purposes in the same terms as the present Sanad, and the position of the alienee in that case was exactly the position of the alienee in the present case. In that case at p. 41 of the report it had been pointed out that the possession of the mortgagee during Gulaya's life was not adverse to him, and a suit brought eight years after his death was not barred. Here also the contention of the appellants is that the possession of the mortgagee during Lumanna's life-time was adverse to him. In that case it was held that during that period the possession would not bo adverse, and. if that decision is accepted, it is clear that the appellants' contention must fail. After a careful consideration of the arguments urged with reference to it, I am of opinion that that decision should be accepted by us. It has remained unchallenged so long, and the conclusion reached there, if I may say so with respect, is a just conclusion. On that ground I would hold that the appellants' contention must fail.

4. It is not necessary, therefore, to examine the other argument urged by Mr. Manerikar that the point is res judicata as against the present appellants. I would confirm the decree of the lower Court and dismiss the appeal with costs.

Fawcett, J.

5. I agree.


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